Daily NCAA Compliance Tips from Jen Condaras

Daily Compliance Item- 2.13.15- Current Event

NCAA files reply in O’Bannon appeal

USAToday.com

The NCAA on Wednesday night continued to insist that a 1984 Supreme Court ruling that the association has relied upon to preserve its amateurism system should prompt a 9th U.S. Circuit Court of Appeals panel to overturn a district judge’s ruling and injunction in the Ed O’Bannon class-action antitrust lawsuit.

In addition, the NCAA argued that recently approved expansions in the benefits that college athletes should not damage its contention that the athletes are – and must remain – amateurs, even though athletes getting such benefits in the past would have been violating the association’s rules. Indeed, the NCAA argued that it should be credited for being willing to make such changes.

Its filing Wednesday night is scheduled to be the last written submission to the appeals court.

Oral argument has been set for March 17 in San Francisco.

NCAA seeks huge reduction in O’Bannon plaintiffs’ legal fees

The plaintiffs, in their written argument to the appellate court in January, said the NCAA’s argument about the need for amateurism in college sports is undermined by various changes and inconsistencies in the association’s amateurism rules.

And while the appeal is supposed to be based on the record that was before the district court, the plaintiffs referred to the vote at the recent NCAA Convention that will allow Division I schools to expand scholarships to cover the full cost of attending college and the NCAA’s decision in January to allow payments to cover the travel expenses of the parents of players participating in the recent College Football Playoff championship game and the 2015 men’s and women’s basketball Final Fours.

The NCAA countered Wednesday night that “reimbursement is consistent with amateurism. … The rule changes that plaintiffs cite … largely reflect the refinement of the NCAA’s views, based on experience and changing circumstances, about what expenses could be covered. … Such evolution by a large and diverse organization, in response to practical realities (and over the course of decades), is a virtue.”

In August, U.S. District Judge Claudia Wilken determined that NCAA rules limiting athletes to scholarships basically comprising tuition, fees, room, board and books violate antitrust laws. She also ordered the creation of a system under which Football Bowl Subdivision and Division I men’s basketball players would be able to receive not only scholarships covering their full cost of attending school, but also what amounts to deferred compensation in exchange for their participation and the schools’ use of their names, images and likenesses.

The NCAA appealed, and reiterated its basic contention Wednesday night, saying that Wilken reached her ruling only by “departing from binding precedent and embracing an analysis that conflicts with fundamental antitrust principles.”

At issue is the 1984 Supreme Court ruling in NCAA v. Board of Regents, a case that was about control of college football TV rights but the opinion on which included the statement that “in order to preserve the character and quality of the (NCAA’s) ‘product,’ athletes must not be paid, must be required to attend class and the like.”

The plaintiffs, in their January filing, contended that nothing in the Supreme Court’s ruling in the Board of Regents case “remotely suggests” that the high court’s analysis “should be frozen as of 1984.” And they said that the NCAA’s “inconsistent applications of ‘amateurism’;” its recognition that the commercialism of football and men’s basketball “has eroded and undermined the relationship between athletics and academics” is evidence that was not before the Supreme Court in the Board of Regents case.

In its reply Wednesday night, the NCAA argued that the passage of time and the change in the college sports environment is irrelevant.

“Even if times had changed in a relevant way,” the Board of Regents case “would still bind this court.”

However, the NCAA argues that nothing has changed in terms of its adherence to the idea of amateurism.

“In fact,” it argued, “although the dollar amounts have grown over time, commercialism and the NCAA’s commitment to amateurism have co-existed for over a century. … Hence, the unquestioned increase in commercialism around some college-sports programs does not undermine the NCAA’s commitment to amateurism. Rather, the NCAA’s amateurism rules prevent college sports from being professionalized in the face of commercial pressures.”

The NCAA conceded that in creating realistic-looking video games, Electronic Arts “took advantage of technological advances to push the limits of the NCAA’s refusal” to authorize use of the athletes’ names, images and likenesses. But the association contended that EA’s “conduct spurred discussions within the NCAA about how to respond in light of concerns about exploitation and inconsistency with amateurism – and ultimately led” to the NCAA’s decision to discontinue its licensing relationship with EA.

As for the plaintiffs’ contention about the erosion of the relationship between athletics and academics, the NCAA wrote that differences between the graduation rates for football and men’s basketball players and those of the student body as a whole “is principally a function of students’ backgrounds, including socioeconomic status, race, and family history and income.”

The NCAA noted that during the district-court trial in June, one of its experts – University of Chicago economist James Heckman — testified that, controlling for those factors, football and men’s basketball players have equivalent or higher graduation rates than non-athletes, as well as better post-college jobs and income.

However, in her ruling, Wilken wrote that none of this had anything to do with the athletes not being allowed to receive greater benefits for the use of the names, images and likenesses.

“To the contrary,” she wrote, “Dr. Heckman specifically testified that the long-term educational and academic benefits that student-athletes enjoy stem from their increased access to financial aid, tutoring, academic support, mentorship, structured schedules, and other educational services that are unrelated to the challenged rules in this case.”